exv10w3






 




    Exhibti 10.3



 




    ATMEL
    CORPORATION



 




    2005
    STOCK PLAN



 




    (AS
    AMENDED AND RESTATED MAY 14, 2008)



 



    1. Background.  The Plan permits
    the grant of Nonstatutory Stock Options, Incentive Stock
    Options, Stock Purchase Rights, Stock Appreciation Rights, and
    Restricted Stock Units.



 



    2. Purposes of the Plan.  The
    purposes of this 2005 Stock Plan are:



 


			
	 	    • 
	
    to attract and retain the best available personnel for positions
    of substantial responsibility,

	 
	 	    • 
	
    to provide additional incentive to Employees, Directors and
    Consultants, and

	 
	 	    • 
	
    to promote the success of the Company’s business.




 



    3. Definitions.  As used herein,
    the following definitions shall apply:



 



    (a) “Administrator” means the Board or any
    of its Committees as shall be administering the Plan, in
    accordance with Section 5 of the Plan.



 



    (b) “Affiliate” means any corporation or
    any other entity (including, but not limited to, partnerships
    and joint ventures) controlling, controlled by, or under common
    control with the Company.



 



    (c) “Applicable Laws” means the
    requirements relating to the administration of stock option
    plans under U.S. state corporate laws, U.S. federal
    and state securities laws, the Code, any stock exchange or
    quotation system on which the Common Stock is listed or quoted
    and the applicable laws of any foreign country or jurisdiction
    where Options or Stock Purchase Rights are, or will be, granted
    under the Plan.



 



    (d) “Annual Revenue” means the
    Company’s or a business unit’s net sales for the
    Fiscal Year, determined in accordance with generally accepted
    accounting principles; provided, however, that prior to the
    Fiscal Year, the Committee shall determine whether any
    significant item(s) shall be excluded or included from the
    calculation of Annual Revenue with respect to one or more
    Participants.



 



    (e) “Award” means, individually or
    collectively, a grant under the Plan of Options, Stock Purchase
    Rights, Stock Appreciation Rights, and Restricted Stock Units.



 



    (f) “Award Agreement” means the written
    agreement setting forth the terms and provisions applicable to
    each Award granted under the Plan. The Award Agreement is
    subject to the terms and conditions of the Plan.



 



    (g) “Board” means the Board of Directors
    of the Company.



 



    (h) “Cash Flow from Operations” means as
    to any Fiscal Year, the Company’s cash generated from
    operating activities, or a business unit’s cash generated
    from operating activities, determined in accordance with
    generally acceptable accounting principles.



 



    (i) “Code” means the Internal Revenue Code
    of 1986, as amended. Reference to a specific section of the Code
    or regulation thereunder shall include such section or
    regulation, any valid regulation promulgated under such section,
    and any comparable provision of any future legislation or
    regulation amending, supplementing or superseding such section
    or regulation.



 



    (j) “Committee” means a committee of
    Directors appointed by the Board in accordance with
    Section 5 of the Plan.



 



    (k) “Common Stock” means the common stock
    of the Company.



 



    (l) “Company” means Atmel Corporation, a
    Delaware corporation.



 



    (m) “Consultant” means any person,
    including an advisor, engaged by the Company or a Parent or
    Subsidiary to render services to such entity.




    

    1








 






    (n) “Director” means a member of the
    Board, either as an Employee or an Outside Director.



 



    (o) “Disability” means total and permanent
    disability as defined in Section 22(e)(3) of the Code.



 



    (p) “Earnings Per Share” means as to any
    Fiscal Year, the Company’s Net Income or a business
    unit’s Pro Forma Net Income, divided by a weighted average
    number of common shares outstanding and dilutive common
    equivalent shares deemed outstanding.



 



    (q) “Employee” means any person, including
    Officers and Directors, employed by the Company or any Parent or
    Subsidiary of the Company. A Service Provider shall not cease to
    be an Employee in the case of (i) any leave of absence
    approved by the Company or (ii) transfers between locations
    of the Company or between the Company, its Parent, any
    Subsidiary, or any successor. For purposes of Incentive Stock
    Options, no such leave may exceed ninety days, unless
    reemployment upon expiration of such leave is guaranteed by
    statute or contract. If reemployment upon expiration of a leave
    of absence approved by the Company is not so guaranteed, then
    three months following the 91st day of such leave any
    Incentive Stock Option held by the Optionee shall cease to be
    treated as an Incentive Stock Option and shall be treated for
    tax purposes as a Nonstatutory Stock Option. Neither service as
    a Director nor payment of a director’s fee by the Company
    shall be sufficient to constitute “employment” by the
    Company.



 



    (r) “Exercise Price” means the price at
    which a Share may be purchased by a Participant pursuant to the
    exercise of an Option.



 



    (s) “Exchange Act” means the Securities
    Exchange Act of 1934, as amended.



 



    (t) “Fair Market Value” means, as of any
    date, the value of Common Stock determined as follows:



 



    (i) If the Common Stock is listed on any established stock
    exchange or a national market system, including without
    limitation the Nasdaq National Market or The Nasdaq SmallCap
    Market of The Nasdaq Stock Market, its Fair Market Value shall
    be the closing sales price for such stock (or the closing bid,
    if no sales were reported) as quoted on such exchange or system
    for the last market trading day prior to the time of
    determination, as reported in The Wall Street Journal or such
    other source as the Administrator deems reliable;



 



    (ii) If the Common Stock is regularly quoted by a
    recognized securities dealer but selling prices are not
    reported, the Fair Market Value of a Share of Common Stock shall
    be the mean between the high bid and low asked prices for the
    Common Stock on the last market trading day prior to the day of
    determination, as reported in The Wall Street Journal or such
    other source as the Administrator deems reliable; or



 



    (iii) In the absence of an established market for the
    Common Stock, the Fair Market Value shall be determined in good
    faith by the Administrator.



 



    (u) “Fiscal Year” means the fiscal year of
    the Company.



 



    (v) “Grant Date” means, with respect to an
    Award, the date that the Award was granted.



 



    (w) “Incentive Stock Option” means an
    Option intended to qualify as an incentive stock option within
    the meaning of Section 422 of the Code and the regulations
    promulgated thereunder.



 



    (x) “Net Income” means as to any Fiscal
    Year, the income after taxes of the Company for the Fiscal Year
    determined in accordance with generally accepted accounting
    principles, provided that prior to the Fiscal Year, the
    Committee shall determine whether any significant item(s) shall
    be included or excluded from the calculation of Net Income with
    respect to one or more Participants.



 



    (y) “Nonstatutory Stock Option” means an
    Option not intended to qualify as an Incentive Stock Option.



 



    (z) “Notice of Grant” means a written or
    electronic notice evidencing certain terms and conditions of an
    individual Award grant. The Notice of Grant is part of the Award
    Agreement.



 



    (aa) “Officer” means a person who is an
    officer of the Company within the meaning of Section 16 of
    the Exchange Act and the rules and regulations promulgated
    thereunder.




    

2








 






    (bb) “Operating Profit” means the
    Company’s or a business unit’s profit from operations
    but excluding any unusual items, determined in accordance with
    generally accepted accounting principles.



 



    (cc)  “Option” means an Incentive
    Stock Option or a Nonstatutory Stock Option granted pursuant to
    the Plan.



 



    (dd) “Optionee” means the holder of an
    outstanding Option or Stock Purchase Right granted under the
    Plan.



 



    (ee) “Option Exchange Program” means a
    program whereby outstanding Options are surrendered or cancelled
    in exchange for the right to receive options of the same type,
    of a different type
    and/or cash
    pursuant to such terms as the Administrator may determine.



 



    (ff) “Optioned Stock” means the Common
    Stock subject to an Award.



 



    (gg) “Outside Director” means a Director
    who is not an Employee.



 



    (hh) “Parent” means a “parent
    corporation,” whether now or hereafter existing, as defined
    in Section 424(e) of the Code.



 



    (ii) “Participant” means the holder of an
    outstanding Award, which shall include an Optionee.



 



    (jj) “Performance Goals” means the goal(s)
    (or combined goal(s)) determined by the Committee (in its
    discretion) to be applicable to a Participant with respect to an
    Award. As determined by the Committee, the Performance Goals
    applicable to an Award may provide for a targeted level or
    levels of achievement using one or more of the following
    measures: (a) Annual Revenue, (b) Operating Profit,
    (c) Cash Flow from Operations, (d) Net Income,
    (e) Pro Forma Net Income, (f) Earnings Per Share, and
    (g) Return on Sales. The Performance Goals may differ from
    Participant to Participant and from Award to Award. Any criteria
    used may be (i) measured in absolute terms,
    (ii) measured in relative terms (including, but not limited
    to compared to another company or companies),
    (iii) measured against the performance of the Company as a
    whole or a segment of the Company
    and/or
    (iv) measured on a pre-tax or post-tax basis (if
    applicable).



 



    (kk) “Plan” means this 2005 Stock Plan, as
    amended.



 



    (ll) “Pro Forma Net Income” means as to
    any business unit for any Fiscal Year, the Controllable Profits
    of such business unit, minus allocations of designated corporate
    expenses.



 



    (mm) “Reload Option” means an Option that
    automatically is granted if a Participant pays the exercise
    price of an Option by tendering Shares.



 



    (nn) “Restricted Stock” means shares of
    Common Stock acquired pursuant to a grant of Stock Purchase
    Rights under Section 12 of the Plan.



 



    (oo) “Restricted Stock Purchase Agreement”
    means a written agreement between the Company and the Optionee
    evidencing the terms and restrictions applying to stock
    purchased under a Stock Purchase Right. The Restricted Stock
    Purchase Agreement is subject to the terms and conditions of the
    Plan and the Notice of Grant.



 



    (pp) “Restricted Stock Unit” means an
    Award granted to a Participant pursuant to Section 14.



 



    (qq) “Retirement” means, in the case of an
    Employee or Director: (a) a Termination of Service
    occurring on or after age sixty-five (65), or (b) a
    Termination of Service occurring on or after age sixty
    (60) with at least ten (10) Years of Service. With
    respect to a Consultant, no Termination of Service shall be
    deemed to be on account of “Retirement.”



 



    (rr) “Return on Sales” means as to any
    Fiscal Year, the percentage equal to the Company’s Net
    Income or the business unit’s Pro Forma Net Income, divided
    by the Company’s or the business unit’s Annual
    Revenue, as applicable.



 



    (ss) “Rule 16b-3”
    means
    Rule 16b-3
    of the Exchange Act or any successor to
    Rule 16b-3,
    as in effect when discretion is being exercised with respect to
    the Plan.




    

    3








 






    (tt) “Section 16(b)” means
    Section 16(b) of the Exchange Act.



 



    (uu) “Service Provider” means an Employee,
    Director or Consultant.



 



    (vv) “Share” means a share of the Common
    Stock, as adjusted in accordance with Section 16 of the
    Plan.



 



    (ww) “Stock Appreciation Right” or
    “SAR” means an Award, granted alone or in
    connection with a related Option (either affiliated or tandem)
    that pursuant to Section 13 is designated as an SAR.



 



    (xx) “Stock Purchase Right” means the
    right to purchase Common Stock pursuant to Section 12 of
    the Plan, as evidenced by a Notice of Grant.



 



    (yy) “Subsidiary” means a “subsidiary
    corporation”, whether now or hereafter existing, as defined
    in Section 424(f) of the Code.



 



    (zz) “Termination of Service” means
    (a) in the case of an Employee, a cessation of the
    employee-employer relationship between the Employee and the
    Company or an Affiliate for any reason, including, but not by
    way of limitation, a termination by resignation, discharge,
    death, Disability, Retirement, or the disaffiliation of an
    Affiliate, but excluding any such termination where there is a
    simultaneous re-employment or engagement as a consultant by the
    Company or an Affiliate; (b) in the case of a Consultant, a
    cessation of the service relationship between the Consultant and
    the Company or an Affiliate for any reason, including, but not
    by way of limitation, a termination by resignation, discharge,
    death, Disability, or the disaffiliation of an Affiliate, but
    excluding any such termination where there is a simultaneous
    employment as an Employee or re-engagement of the Consultant by
    the Company or an Affiliate; and (c) in the case of a
    Director, a cessation of the Director’s service on the
    Board for any reason, including, but not by way of limitation, a
    termination by resignation, death, Disability, Retirement or
    non-reelection to the Board, but excluding any such termination
    where there is a simultaneous employment as an Employee or
    engagement as a Consultant by the Company or an Affiliate.



 



    4. Stock Subject to the Plan.



 



    (a) Subject to the provisions of Section 16 of the
    Plan, the maximum aggregate number of Shares that may be
    optioned and sold under the Plan is
    114,000,000 Shares.1
    The Shares may be authorized, but unissued, or reacquired Common
    Stock.



 



    If an Award expires or becomes unexercisable without having been
    exercised in full, or is surrendered pursuant to an Option
    Exchange Program, the unpurchased Shares which were subject
    thereto shall become available for future grant or sale under
    the Plan (unless the Plan has terminated); provided,
    however, that Shares that have actually been issued under
    the Plan, whether upon exercise of an Option or Right, shall not
    be returned to the Plan and shall not become available for
    future distribution under the Plan, except that if Shares of
    Restricted Stock are repurchased by the Company at their
    original purchase price, such Shares shall become available for
    future grant under the Plan.



 



    (b) Full Value Awards.  Any Shares
    subject to Restricted Stock, Restricted Stock Units, and Stock
    Purchase Rights granted on or after May 14, 2008 will be
    counted against the numerical limits of this Section 4 as
    one and
    78/100
    (1.78) Shares for every one (1) Share subject thereto.
    Further, if Shares acquired pursuant to any Restricted Stock,
    Restricted Stock Units, and Stock Purchase Rights granted on or
    after May 14, 2008 are forfeited or repurchased by the
    Company and would otherwise return to the Plan pursuant to this
    Section 4, one and 78/100 (1.78) times the number of Shares
    so forfeited or repurchased will return to the Plan and will
    again become available for issuance.



 



    5. Administration of the Plan.  



 



    (a) Procedure.  



 



    (i) Multiple Administrative
    Bodies.  The Plan may be administered by
    different Committees with respect to different groups of Service
    Providers.


 

 


    1 Includes
    58,000,000 Shares approved by the Company’s
    stockholders on May 14, 2008.




    

    4








 






    (ii) Section 162(m).  To the
    extent that the Administrator determines it to be desirable to
    qualify Awards granted hereunder as “performance-based
    compensation” within the meaning of Section 162(m) of
    the Code, the Plan shall be administered by a Committee of two
    or more “outside directors” within the meaning of
    Section 162(m) of the Code. For purposes of qualifying
    grants of Awards as “performance-based compensation”
    under Section 162(m) of the Code, the Committee, in its
    discretion, may set restrictions based upon the achievement of
    Performance Goals. The Performance Goals shall be set by the
    Committee on or before the latest date permissible to enable the
    Awards to qualify as “performance-based compensation”
    under Section 162(m) of the Code. In granting Awards that
    are intended to qualify under Section 162(m) of the Code,
    the Committee shall follow any procedures determined by it from
    time to time to be necessary or appropriate to ensure
    qualification of the Awards under Section 162(m) of the
    Code (e.g., in determining the Performance Goals).



 



    (iii) Rule 16b-3.  To
    the extent desirable to qualify transactions hereunder as exempt
    under
    Rule 16b-3,
    the transactions contemplated hereunder shall be structured to
    satisfy the requirements for exemption under
    Rule 16b-3.



 



    (iv) Other Administration.  Other
    than as provided above, the Plan shall be administered by
    (A) the Board or (B) a Committee, which committee
    shall be constituted to satisfy Applicable Laws.



 



    (b) Powers of the
    Administrator.  Subject to the provisions of
    the Plan, and in the case of a Committee, subject to the
    specific duties delegated by the Board to such Committee, the
    Administrator shall have the authority, in its discretion:



 



    (i) to determine the Fair Market Value;



 



    (ii) to select the Service Providers to whom Awards may be
    granted hereunder;



 



    (iii) to determine the number of shares of Common Stock to
    be covered by each Award granted hereunder;



 



    (iv) to approve forms of agreement for use under the Plan;



 



    (v) to determine the terms and conditions, not inconsistent
    with the terms of the Plan, of any Award granted hereunder. Such
    terms and conditions include, but are not limited to, the
    exercise price, the time or times when Awards may be exercised
    (which may be based on performance criteria), any vesting
    acceleration or waiver of forfeiture restrictions, and any
    restriction or limitation regarding any Award or the Shares
    relating thereto, based in each case on such factors as the
    Administrator, in its sole discretion, shall determine;



 



    (vi) to construe and interpret the terms of the Plan and
    Awards granted pursuant to the Plan;



 



    (vii) to prescribe, amend and rescind rules and regulations
    relating to the Plan, including rules and regulations relating
    to sub-plans established for the purpose of satisfying
    applicable foreign laws;



 



    (viii) to modify or amend each Award (subject to
    Section 18(c) of the Plan), including the discretionary
    authority to extend the post-termination exercisability period
    of Options longer than is otherwise provided for in the Plan;



 



    (ix) to allow Optionees to satisfy withholding tax
    obligations by electing to have the Company withhold from the
    Shares to be issued upon exercise of an Award that number of
    Shares having a Fair Market Value equal to the minimum amount
    required to be withheld. The Fair Market Value of the Shares to
    be withheld shall be determined on the date that the amount of
    tax to be withheld is to be determined. All elections by an
    Optionee to have Shares withheld for this purpose shall be made
    in such form and under such conditions as the Administrator may
    deem necessary or advisable;



 



    (x) to authorize any person to execute on behalf of the
    Company any instrument required to effect the grant of an Award
    previously granted by the Administrator;



 



    (xi) to commence a 409A Exchange Offer in connection with
    each Option that had a per share exercise price that was less
    than the fair market value of a share of the Company’s
    common stock, as determined for purposes of Internal Revenue
    Code Section 409A, on the Option’s grant date and that
    was unvested, in whole or in part, as of December 31, 2004
    (notwithstanding Section 18(b) of the Plan), as described
    by Section 23 of the Plan;




    

    5








 






    (xii) to make all other determinations deemed necessary or
    advisable for administering the Plan.



 



    (c) Additional Power of Administrator Requiring
    Stockholder Approval.  The Administrator shall
    have authority to take the following actions, but only if not
    otherwise prohibited by the provisions of the Plan and only if
    approval by the Company’s stockholders is obtained:



 



    (i) reduce the exercise price of any Award to the then
    current Fair Market Value if the Fair Market Value of the Common
    Stock covered by such Award shall have declined since the date
    the Award was granted; provided, however, that the Administrator
    shall have the power to make adjustments in the exercise price
    of any Award pursuant to Section 16 without the necessity
    of obtaining stockholder approval;



 



    (ii) institute an Option Exchange Program to allow for the
    cancellation of an outstanding Option followed by its immediate
    replacement with a new Option with a lower exercise price, or
    with a different type of Award, cash or a combination thereof;
    provided, however, that the Administrator shall have the power
    to make adjustments in the exercise price of any Award pursuant
    to Section 16 without the necessity of obtaining
    stockholder approval; and



 



    (iii) institute any other program that would constitute a
    revaluation or repricing of Options; provided, however, that the
    Administrator shall have the power to make adjustments in the
    exercise price of any Award pursuant to Section 16 without
    the necessity of obtaining stockholder approval.



 



    (d) Effect of Administrator’s
    Decision.  The Administrator’s decisions,
    determinations and interpretations shall be final and binding on
    all Optionees and any other holders of Options or Stock Purchase
    Rights.



 



    6. Eligibility.  Nonstatutory Stock
    Options, Stock Purchase Rights, Stock Appreciation Rights and
    Restricted Stock Units may be granted to Service Providers.
    Incentive Stock Options may be granted only to Employees.



 



    7. Limitations.  



 



    (a) Each Option shall be designated in the Award Agreement
    as either an Incentive Stock Option or a Nonstatutory Stock
    Option. However, notwithstanding such designation, to the extent
    that the aggregate Fair Market Value of the Shares with respect
    to which Incentive Stock Options are exercisable for the first
    time by the Optionee during any calendar year (under all plans
    of the Company and any Parent or Subsidiary) exceeds $100,000,
    such Options shall be treated as Nonstatutory Stock Options. For
    purposes of this Section 7(a), Incentive Stock Options
    shall be taken into account in the order in which they were
    granted. The Fair Market Value of the Shares shall be determined
    as of the time the Option with respect to such Shares is granted.



 



    (b) Neither the Plan nor any Award shall confer upon an
    Optionee any right with respect to continuing the
    Optionee’s relationship as a Service Provider with the
    Company, nor shall they interfere in any way with the
    Optionee’s right or the Company’s right to terminate
    such relationship at any time, with or without cause.



 



    (c) The following limitations shall apply to grants of
    Options, Stock Purchase Rights, Stock Appreciation Rights and
    Restricted Stock Units:



 



    (i) No Service Provider shall be granted, in any fiscal
    year of the Company, Options, Stock Purchase Rights, Stock
    Appreciation Rights or Restricted Stock Units to purchase more
    than 5,000,000 Shares.



 



    (ii) In connection with his or her initial service, a
    Service Provider may be granted Options, Stock Purchase Rights,
    Stock Appreciation Rights or Restricted Stock Units to purchase
    up to an additional 5,000,000 Shares which shall not count
    against the limit set forth in subsection (i) above.



 



    (iii) The foregoing limitations shall be adjusted
    proportionately in connection with any change in the
    Company’s capitalization as described in Section 16.



 



    (iv) If an Option, Stock Purchase Rights, Stock
    Appreciation Rights or Restricted Stock Unit is cancelled in the
    same fiscal year of the Company in which it was granted (other
    than in connection with a transaction described in
    Section 16), the cancelled Option, Stock Purchase Rights,
    Stock Appreciation Rights or Restricted Stock Units will be
    counted against the limits set forth in subsections (i) and
    (ii) above. For this purpose, if the exercise price of an
    Option, Stock Purchase Rights, Stock Appreciation Rights or
    Restricted




    

    6








 






    Stock Unit is reduced, the transaction will be treated as a
    cancellation of the Option, Stock Purchase Rights, Stock
    Appreciation Rights or Restricted Stock Units and the grant of a
    new Option, Stock Purchase Rights, Stock Appreciation Rights or
    Restricted Stock Units.



 



    8. Term of Plan.  Subject to
    Section 22 of the Plan, the Plan shall become effective
    upon adoption by the Board and obtaining stockholder approval.
    The Plan amends and restates the previous 1996 Stock Plan. It
    shall continue in effect for a term of ten (10) years
    unless terminated earlier under Section 18 of the Plan.



 



    9. Term of Option.  The term of
    each Option shall be stated in the Award Agreement; however, the
    term of an Option granted on or after April 9, 2008 shall
    be no longer than ten (10) years from the Grant Date or
    such shorter term as may be provided in the Award Agreement.
    Moreover, in the case of an Incentive Stock Option granted to an
    Optionee who, at the time the Incentive Stock Option is granted,
    owns stock representing more than ten percent (10%) of the total
    combined voting power of all classes of stock of the Company or
    any Parent or Subsidiary, the term of the Incentive Stock Option
    shall be five (5) years from the Grant Date or such shorter
    term as may be provided in the Award Agreement.



 



    10. Option Exercise Price and
    Consideration.  



 



    (a) Exercise Price.  The per share
    exercise price for the Shares to be issued pursuant to exercise
    of an Option shall be determined by the Administrator, subject
    to the following:



 



    (i) In the case of an Incentive Stock Option



 



    (A) granted to an Employee who, at the time the Incentive
    Stock Option is granted, owns stock representing more than ten
    percent (10%) of the voting power of all classes of stock of the
    Company or any Parent or Subsidiary, the per Share exercise
    price shall be no less than 110% of the Fair Market Value per
    Share on the Grant Date.



 



    (B) granted to any Employee other than an Employee
    described in paragraph (A) immediately above, the per Share
    exercise price shall be no less than 100% of the Fair Market
    Value per Share on the Grant Date.



 



    (ii) In the case of a Nonstatutory Stock Option granted on
    or after April 9, 2008, except as may be required by law to
    ensure favorable tax treatment in a
    non-U.S. jurisdiction,
    the per Share exercise price shall be no less than 100% of the
    Fair Market Value per share on the Grant Date . In the case of a
    Nonstatutory Stock Option intended to qualify as
    “performance-based compensation” within the meaning of
    Section 162(m) of the Code, the per Share exercise price
    shall be no less than 100% of the Fair Market Value per Share on
    the Grant Date.



 



    (iii) Notwithstanding the foregoing, Options may be granted
    with a per Share exercise price of less than 100% of the Fair
    Market Value per Share on the Grant Date pursuant to a merger or
    other corporate transaction.



 



    (b) Waiting Period and Exercise
    Dates.  At the time an Option is granted, the
    Administrator shall fix the period within which the Option may
    be exercised and shall determine any conditions which must be
    satisfied before the Option may be exercised.



 



    (c) Form of Consideration.  The
    Administrator shall determine the acceptable form of
    consideration for exercising an Option, including the method of
    payment. In the case of an Incentive Stock Option, the
    Administrator shall determine the acceptable form of
    consideration at the time of grant. Such consideration may
    consist entirely of:



 



    (i) cash;



 



    (ii) check;



 



    (iii) other Shares, which in the case of Shares acquired
    directly or indirectly from the Company, (A) have been
    vested and owned by the Optionee for more than six months on the
    date of surrender, and (B) have a Fair Market Value on the
    date of surrender equal to the aggregate exercise price of the
    Shares as to which said Option shall be exercised;




    

    7








 






    (iv) consideration received by the Company under a cashless
    exercise program implemented by the Company in connection with
    the Plan;



 



    (v) a reduction in the amount of any Company liability to
    the Optionee, including any liability attributable to the
    Optionee’s participation in any Company-sponsored deferred
    compensation program or arrangement;



 



    (vi) any combination of the foregoing methods of
    payment; or



 



    (vii) such other consideration and method of payment for
    the issuance of Shares to the extent permitted by Applicable
    Laws.



 



    11. Exercise of Option.  



 



    (a) Procedure for Exercise; Rights as a
    Shareholder.  Any Option granted hereunder
    shall be exercisable according to the terms of the Plan and at
    such times and under such conditions as determined by the
    Administrator and set forth in the Award Agreement. Except for
    options granted prior to October 11, 1996, or unless the
    Administrator provides otherwise, vesting of Options granted
    hereunder shall be suspended during any unpaid leave of absence.
    An Option may not be exercised for a fraction of a Share.



 



    An Option shall be deemed exercised when the Company receives:
    (i) written or electronic notice of exercise (in accordance
    with the Award Agreement) from the person entitled to exercise
    the Option, and (ii) full payment for the Shares with
    respect to which the Option is exercised. Full payment may
    consist of any consideration and method of payment authorized by
    the Administrator and permitted by the Award Agreement and the
    Plan. Shares issued upon exercise of an Option shall be issued
    in the name of the Optionee or, if requested by the Optionee, in
    the name of the Optionee and his or her spouse. Until the Shares
    are issued (as evidenced by the appropriate entry on the books
    of the Company or of a duly authorized transfer agent of the
    Company), no right to vote or receive dividends or any other
    rights as a shareholder shall exist with respect to the Optioned
    Stock, notwithstanding the exercise of the Option. The Company
    shall issue (or cause to be issued) such Shares promptly after
    the Option is exercised. No adjustment will be made for a
    dividend or other right for which the record date is prior to
    the date the Shares are issued, except as provided in
    Section 16 of the Plan.



 



    Exercising an Option in any manner shall decrease the number of
    Shares thereafter available, both for purposes of the Plan and
    for sale under the Option, by the number of Shares as to which
    the Option is exercised.



 



    (b) Termination of Relationship as a Service
    Provider.  If an Optionee ceases to be a
    Service Provider, other than upon the Optionee’s death or
    Disability, the Optionee may exercise his or her Option within
    such period of time as is specified in the Award Agreement to
    the extent that the Option is vested on the date of termination
    (but in no event later than the expiration of the term of such
    Option as set forth in the Award Agreement). In the absence of a
    specified time in the Award Agreement, the Option shall remain
    exercisable for three (3) months following the
    Optionee’s termination. If, on the date of termination, the
    Optionee is not vested as to his or her entire Option, the
    Shares covered by the unvested portion of the Option shall
    revert to the Plan. If, after termination, the Optionee does not
    exercise his or her Option within the time specified by the
    Administrator, the Option shall terminate, and the Shares
    covered by such Option shall revert to the Plan.



 



    (c) Disability of Optionee.  If an
    Optionee ceases to be a Service Provider as a result of the
    Optionee’s Disability, the Optionee may exercise his or her
    Option within such period of time as is specified in the Award
    Agreement to the extent the Option is vested on the date of
    termination (but in no event later than the expiration of the
    term of such Option as set forth in the Award Agreement). In the
    absence of a specified time in the Award Agreement, the Option
    shall remain exercisable for twelve (12) months following
    the Optionee’s termination. If, on the date of termination,
    the Optionee is not vested as to his or her entire Option, the
    Shares covered by the unvested portion of the Option shall
    revert to the Plan. If, after termination, the Optionee does not
    exercise his or her Option within the time specified herein, the
    Option shall terminate, and the Shares covered by such Option
    shall revert to the Plan.



 



    (d) Death of Optionee.  If an
    Optionee dies while a Service Provider, the Option may be
    exercised following the Optionee’s death within such period
    of time as is specified in the Award Agreement to the extent the
    Option is vested on the date of death (but in no event later
    than the expiration of the term of such Option as set forth in
    the




    

    8








 






    Award Agreement), by the Optionee’s designated beneficiary,
    provided such beneficiary has been designated prior to
    Optionee’s death in a form acceptable to the Administrator.
    If no such beneficiary has been designated by the Optionee, then
    such Option may be exercised by the personal representative of
    the Optionee’s estate or by the person(s) to whom the
    Option is transferred pursuant to the Optionee’s will or in
    accordance with the laws of descent and distribution. In the
    absence of a specified time in the Award Agreement, the Option
    shall remain exercisable for twelve (12) months following
    the Optionee’s death. If, at the time of death, the
    Optionee is not vested as to his or her entire Option, the
    Shares covered by the unvested portion of the Option shall
    immediately revert to the Plan. If the Option is not so
    exercised within the time specified herein, the Option shall
    terminate, and the Shares covered by such Option shall revert to
    the Plan.



 



    12. Stock Purchase Rights.  



 



    (a) Rights to Purchase.  Stock
    Purchase Rights may be issued either alone, in addition to, or
    in tandem with other awards granted under the Plan
    and/or cash
    awards made outside of the Plan. After the Administrator
    determines that it will offer Stock Purchase Rights under the
    Plan, it shall advise the offeree in writing or electronically,
    by means of a Notice of Grant, of the terms, conditions and
    restrictions related to the offer, including the number of
    Shares that the offeree shall be entitled to purchase, the price
    to be paid, and the time within which the offeree must accept
    such offer. The offer shall be accepted by execution of a
    Restricted Stock Purchase Agreement in the form determined by
    the Administrator.



 



    (b) Number of Shares.  The
    Administrator shall have complete discretion to determine the
    number of Stock Purchase Rights granted to any Participant,
    provided that during any Fiscal Year, no Participant shall be
    granted Stock Purchase Rights covering more than
    5,000,000 Shares, unless in connection with his or her
    initial service as described in Section 7(c)(ii).



 



    (c) Repurchase Option.  Unless the
    Administrator determines otherwise, the Restricted Stock
    Purchase Agreement shall grant the Company a repurchase option
    exercisable upon the voluntary or involuntary termination of the
    purchaser’s service with the Company for any reason
    (including death or Disability). The purchase price for Shares
    repurchased pursuant to the Restricted Stock Purchase Agreement
    shall be the original price paid by the purchaser and may be
    paid by cancellation of any indebtedness of the purchaser to the
    Company. The repurchase option shall lapse at a rate determined
    by the Administrator.



 



    (d) Other Provisions.  The
    Restricted Stock Purchase Agreement shall contain such other
    terms, provisions and conditions not inconsistent with the Plan
    as may be determined by the Administrator in its sole discretion.



 



    (e) Rights as a Shareholder.  Once
    the Stock Purchase Right is exercised, the purchaser shall have
    the rights equivalent to those of a shareholder, and shall be a
    shareholder when his or her purchase is entered upon the records
    of the duly authorized transfer agent of the Company. No
    adjustment will be made for a dividend or other right for which
    the record date is prior to the date the Stock Purchase Right is
    exercised, except as provided in Section 16 of the Plan.



 



    13. Stock Appreciation Rights.  



 



    (a) Grant of SARs.  Subject to the
    terms and conditions of the Plan, a SAR may be granted to
    Employees and Consultants at any time and from time to time as
    shall be determined by the Administrator, in its sole
    discretion. The Administrator may grant affiliated SARs,
    freestanding SARs, tandem SARs, or any combination thereof.



 



    (i) Number of Shares.  The
    Administrator shall have complete discretion to determine the
    number of SARs granted to any Participant, provided that during
    any Fiscal Year, no Participant shall be granted SARs covering
    more than 5,000,000 Shares, unless in connection with his
    or her initial service as described in Section 7(c)(ii).



 



    (ii) Exercise Price and Other
    Terms.  The Administrator, subject to the
    provisions of the Plan, shall have complete discretion to
    determine the terms and conditions of SARs granted under the
    Plan. However, except as may be required by law to ensure
    favorable tax treatment in a
    non-U.S. jurisdiction,
    the exercise price of a freestanding SAR shall be not less than
    one hundred percent (100%) of the Fair Market Value of a Share
    on the Grant Date. The exercise price of tandem or affiliated
    SARs shall equal the Exercise Price of the related Option.




    

    9








 






    (b) Exercise of Tandem
    SARs.  Tandem SARs may be exercised for all or
    part of the Shares subject to the related Option upon the
    surrender of the right to exercise the equivalent portion of the
    related Option. A tandem SAR may be exercised only with respect
    to the Shares for which its related Option is then exercisable.
    With respect to a tandem SAR granted in connection with an
    Incentive Stock Option: (a) the tandem SAR shall expire no
    later than the expiration of the underlying Incentive Stock
    Option; (b) the value of the payout with respect to the
    tandem SAR shall be for no more than one hundred percent (100%)
    of the difference between the Exercise Price of the underlying
    Incentive Stock Option and the Fair Market Value of the Shares
    subject to the underlying Incentive Stock Option at the time the
    tandem SAR is exercised; and (c) the tandem SAR shall be
    exercisable only when the Fair Market Value of the Shares
    subject to the Incentive Stock Option exceeds the Exercise Price
    of the Incentive Stock Option.



 



    (c) Exercise of Affiliated
    SARs.  An affiliated SAR shall be deemed to be
    exercised upon the exercise of the related Option. The deemed
    exercise of an affiliated SAR shall not necessitate a reduction
    in the number of Shares subject to the related Option.



 



    (d) Exercise of Freestanding
    SARs.  Freestanding SARs shall be exercisable
    on such terms and conditions as the Administrator, in its sole
    discretion, shall determine.



 



    (e) SAR Agreement.  Each SAR grant
    shall be evidenced by an Award Agreement that shall specify the
    exercise price, the term of the SAR, the conditions of exercise,
    and such other terms and conditions as the Administrator, in its
    sole discretion, shall determine.



 



    (f) Expiration of SARs.  An SAR
    granted under the Plan shall expire upon the date determined by
    the Administrator, in its sole discretion, and set forth in the
    Award Agreement; however, an SAR granted on or after
    April 9, 2008 shall expire no later than ten
    (10) years from the Grant Date. Notwithstanding the
    foregoing, the rules of Section 11 also shall apply to SARs.



 



    (g) Payment of SAR Amount.  Upon
    exercise of an SAR, a Participant shall be entitled to receive
    payment from the Company in an amount determined by multiplying:



 



    (i) The difference between the Fair Market Value of a Share
    on the date of exercise over the exercise price; times



 



    (ii) The number of Shares with respect to which the SAR is
    exercised.



 



    At the discretion of the Administrator, the payment upon SAR
    exercise may be in cash, in Shares of equivalent value, or in
    some combination thereof. For purposes of Section 4 of the
    Plan, the reduction in Shares available for future issuance upon
    the grant of the SAR will be determined at the Grant Date based
    on the full number of Shares subject to the SAR. Upon settlement
    of the SAR, there will be no further reduction in Shares
    available for future issuance under Section 4 of the Plan.
    Upon the forfeiture of all or a portion of the SAR, the
    forfeited Shares shall be returned to the Shares available for
    future issuance under Section 4 of the Plan. For avoidance
    of doubt, upon settlement of an SAR, Shares will not be returned
    to the Shares available for future issuance under Section 4
    of the Plan, notwithstanding the fact that if Shares are issued
    in settlement of an SAR they will be issued only based on the
    difference between the Fair Market Value of a Share on the date
    of exercise over the exercise price.



 



    14. Restricted Stock Units.



 



    (a) Grant of Restricted Stock
    Units.  Restricted Stock Units may be granted
    to Service Providers at any time and from time to time, as will
    be determined by the Administrator, in its sole discretion.



 



    (b) Number of Shares.  The
    Administrator will have complete discretion in determining the
    number of Restricted Stock Units granted to each Participant,
    provided that during any Fiscal Year, no Participant shall be
    granted Restricted Stock Units covering more than
    5,000,000 Shares, unless in connection with his or her
    initial service as described in Section 7(c)(ii).



 



    (c) Value of Restricted Stock
    Units.  Each Restricted Stock Unit will have
    an initial value that is established by the Administrator on or
    before the Grant Date.




    

    10








 





    (d) Performance Goals and Other
    Terms.  The Administrator will set Performance
    Goals or other vesting provisions (including, without
    limitation, continued status as a Service Provider) in its
    discretion which, depending on the extent to which they are met,
    will determine the number or value of Restricted Stock Units
    that will be paid out to the Service Providers. The time period
    during which the Performance Goals or other vesting provisions
    must be met will be called the “Performance Period.”
    Each award of Restricted Stock Units will be evidenced by an
    Award Agreement that will specify the Performance Period, and
    such other terms and conditions as the Administrator, in its
    sole discretion, will determine. The Administrator may set
    Performance Goals based upon the achievement of Company-wide,
    divisional, or individual goals, applicable federal or state
    securities laws, or any other basis determined by the
    Administrator in its discretion.



 



    (e) Duration of Performance
    Periods.  The Administrator will set the
    length of time for a Performance Period, subject to the
    following limits:



 



    (i) The Performance Period related to Restricted Stock
    Units with Performance Goals shall not be less than one
    (1) year; and



 



    (ii) The Performance Period related to Restricted Stock
    Units with time-based vesting provisions shall not be less than
    three (3) years;



 



    provided, however, that up to five percent (5%) of the shares
    currently authorized for grant under the Plan may be subject to
    Restricted Stock Units without such limits on the length of the
    Performance Period.



 



    (f) Earning of Restricted Stock
    Units.  After the applicable Performance
    Period has ended, the holder of Restricted Stock Units will be
    entitled to receive a payout of the number of Restricted Stock
    Units earned by the Participant over the Performance Period, to
    be determined as a function of the extent to which the
    corresponding Performance Goals or other vesting provisions have
    been achieved. After the grant of a Restricted Stock Units, the
    Administrator shall not reduce or waive any Performance Goals or
    other vesting provisions for such Restricted Stock Unit;
    provided, however, that the Administrator, in its sole
    discretion, may reduce or waive any Performance Goals or other
    vesting provisions for such Restricted Stock Unit in the event
    of a Participant’s death, Disability, or Retirement, or in
    the event of the sale of substantially all of the assets of the
    Company, or a merger of the Company with or into another entity
    pursuant to which the stockholders of the Company before such
    transaction do not retain, directly or indirectly, at least a
    majority of the beneficial interest in the voting stock of the
    Company after such transaction.



 



    (g) Form and Timing of Payment of Restricted Stock
    Units.  Payment of earned Restricted Stock
    Units will be made as soon as practicable after the expiration
    of the applicable Performance Period. The Administrator, in its
    sole discretion, may pay earned Restricted Stock Units in the
    form of cash, in Shares (which have an aggregate Fair Market
    Value equal to the value of the earned Restricted Stock Units at
    the close of the applicable Performance Period) or in a
    combination thereof.



 



    (h) Cancellation of Restricted Stock
    Units.  On the date set forth in the Award
    Agreement, all unearned or unvested Restricted Stock Units will
    be forfeited to the Company, and again will be available for
    grant under the Plan.



 



    15. Non-Transferability of
    Awards.  Unless determined otherwise by the
    Administrator, an Award may not be sold, pledged, assigned,
    hypothecated, transferred, or disposed of in any manner other
    than by will or by the laws of descent or distribution and may
    be exercised, during the lifetime of the Optionee, only by the
    Optionee. If the Administrator makes an Award transferable, such
    Award shall contain such additional terms and conditions as the
    Administrator deems appropriate.



 



    16. Adjustments Upon Changes in Capitalization,
    Dissolution or Liquidation, Merger or Asset
    Sale.  



 



    (a) Changes in
    Capitalization.  Subject to any required
    action by the stockholders of the Company, the number and class
    of Shares that may be delivered under the Plan
    and/or the
    number, class, and price of Shares covered by each outstanding
    Award, and the numerical Share limits in Sections 4, 7, 13
    and 14 of the Plan, shall be proportionately adjusted for any
    increase or decrease in the number of issued Shares resulting
    from a stock split, reverse stock split, stock dividend,
    combination or reclassification of the Shares, or any other
    increase or decrease in the number of issued Shares effected
    without receipt of consideration by the Company; provided,
    however, that




    

    11








 






    conversion of any convertible securities of the Company shall
    not be deemed to have been “effected without receipt of
    consideration.” Such adjustment shall be made by the Board,
    whose determination in that respect shall be final, binding and
    conclusive. Except as expressly provided herein, no issuance by
    the Company of shares of stock of any class, or securities
    convertible into shares of stock of any class, shall affect, and
    no adjustment by reason thereof shall be made with respect to,
    the number or price of Shares subject to an Award.



 



    (b) Dissolution or Liquidation.  In
    the event of the proposed dissolution or liquidation of the
    Company, the Administrator shall notify each Participant as soon
    as practicable prior to the effective date of such proposed
    transaction. The Administrator in its discretion may provide for
    a Participant to have the right to exercise his or her Award
    until ten (10) days prior to such transaction as to all of
    the Optioned Stock covered thereby, including Shares as to which
    the Award would not otherwise be exercisable. In addition, the
    Administrator may provide that any Company repurchase option
    applicable to any Shares purchased upon exercise of an Award
    shall lapse as to all such Shares, provided the proposed
    dissolution or liquidation takes place at the time and in the
    manner contemplated. To the extent it has not been previously
    exercised, an Award will terminate immediately prior to the
    consummation of such proposed action.



 



    (c) Merger or Asset Sale.  In the
    event of a merger of the Company with or into another
    corporation, or the sale of substantially all of the assets of
    the Company, each outstanding Award shall be assumed or an
    equivalent option or right substituted by the successor
    corporation or a Parent or Subsidiary of the successor
    corporation. In the event that the successor corporation refuses
    to assume or substitute for the Award, the Participant will
    fully vest in and have the right to exercise all of his or her
    outstanding Options and Stock Appreciation Rights, including
    Shares as to which such Awards would not otherwise be vested or
    exercisable, all restrictions on Restricted Stock will lapse,
    and, with respect to Restricted Stock Units, all Performance
    Goals or other vesting criteria will be deemed achieved at
    target levels and all other terms and conditions met. In
    addition, if an Option or Stock Appreciation Right becomes fully
    vested and exercisable in lieu of assumption or substitution in
    the event of a merger or sale of assets, the Administrator will
    notify the Participant in writing or electronically that the
    Option or Stock Appreciation Right will be fully vested and
    exercisable for a period of 15 days from the date of such
    notice, and the Option or Stock Appreciation Right will
    terminate upon the expiration of such period.



 



    For the purposes of this paragraph, the Award shall be
    considered assumed if, following the merger or sale of assets,
    the Award confers the right to purchase or receive, for each
    Share subject to the Award immediately prior to the merger or
    sale of assets, the consideration (whether stock, cash, or other
    securities or property) or, in the case of a Stock Appreciation
    Right upon the exercise of which the Administrator determines to
    pay cash or a Restricted Stock Unit which the Administrator can
    determine to pay in cash, the fair market value of the
    consideration received in the merger or sale of assets by
    holders of Common Stock for each Share held on the effective
    date of the transaction (and if holders were offered a choice of
    consideration, the type of consideration chosen by the holders
    of a majority of the outstanding Shares); provided, however,
    that if such consideration received in the merger or sale of
    assets is not solely common stock of the successor corporation
    or its Parent, the Administrator may, with the consent of the
    successor corporation, provide for the consideration to be
    received upon the exercise of an Option or Stock Appreciation
    Right or upon the payout of a Restricted Stock Unit, for each
    Share subject to such Award (or in the case of Restricted Stock
    Units, the number of implied shares determined by dividing the
    value of the Restricted Stock Units by the per Share
    consideration received by holders of Common Stock in the merger
    or sale of assets), to be solely common stock of the successor
    corporation or its Parent equal in fair market value to the per
    Share consideration received by holders of Common Stock in the
    merger or sale of assets.



 



    Notwithstanding anything in this Section 16(c) to the
    contrary, an Award that vests, is earned or paid-out upon the
    satisfaction of one or more Performance Goals will not be
    considered assumed if the Company or its successor modifies any
    of such Performance Goals without the Participant’s
    consent; provided, however, a modification to such Performance
    Goals only to reflect the successor corporation’s corporate
    structure post-merger or post-sale of assets will not be deemed
    to invalidate an otherwise valid Award assumption.




    

    12








 






    17. Date of Grant.  The Grant Date
    of an Award shall be, for all purposes, the date on which the
    Administrator makes the determination granting such Award, or
    such other later date as is determined by the Administrator.
    Notice of the determination shall be provided to each Optionee
    within a reasonable time after the date of such grant.



 



    18. Amendment and Termination of the
    Plan.  



 



    (a) Amendment and Termination.  The
    Board may at any time amend, alter, suspend or terminate the
    Plan.



 



    (b) Shareholder Approval.  The
    Company shall obtain shareholder approval of any Plan amendment
    to the extent necessary and desirable to comply with Applicable
    Laws, and to adopt material Plan amendments, including:



 



    (i) A material increase in benefits accrued to Participants
    under the Plan;



 



    (ii) An increase in the number of shares that may be
    optioned or sold under the Plan;



 



    (iii) A material modification (expansion or reduction) of
    the class of participants in the Plan; or



 



    (iv) A provision permitting the Administrator to lapse or
    waive restrictions on Awards at its discretion.



 



    (c) Effect of Amendment or
    Termination.  No amendment, alteration,
    suspension or termination of the Plan shall impair the rights of
    any Optionee, unless mutually agreed otherwise between the
    Optionee and the Administrator, which agreement must be in
    writing and signed by the Optionee and the Company. Termination
    of the Plan shall not affect the Administrator’s ability to
    exercise the powers granted to it hereunder with respect to
    Options granted under the Plan prior to the date of such
    termination.



 



    19. Conditions Upon Issuance of
    Shares.  



 



    (a) Legal Compliance.  Shares shall
    not be issued pursuant to the exercise of an Award unless the
    exercise of such Award and the issuance and delivery of such
    Shares shall comply with Applicable Laws and shall be further
    subject to the approval of counsel for the Company with respect
    to such compliance.



 



    (b) Investment Representations.  As
    a condition to the exercise of an Award, the Company may require
    the person exercising such Award to represent and warrant at the
    time of any such exercise that the Shares are being purchased
    only for investment and without any present intention to sell or
    distribute such Shares if, in the opinion of counsel for the
    Company, such a representation is required.



 



    20. Inability to Obtain
    Authority.  The inability of the Company to
    obtain authority from any regulatory body having jurisdiction,
    which authority is deemed by the Company’s counsel to be
    necessary to the lawful issuance and sale of any Shares
    hereunder, shall relieve the Company of any liability in respect
    of the failure to issue or sell such Shares as to which such
    requisite authority shall not have been obtained.



 



    21. Reservation of Shares.  The
    Company, during the term of this Plan, will at all times reserve
    and keep available such number of Shares as shall be sufficient
    to satisfy the requirements of the Plan.



 



    22. Shareholder Approval.  The Plan
    shall be subject to approval by the shareholders of the Company
    within twelve (12) months after the date the Plan is
    adopted. Such shareholder approval shall be obtained in the
    manner and to the degree required under Applicable Laws.



 



    23. 409A Exchange Offer.  The
    Administrator, may in its sole discretion, offer to each
    Optionee who holds an Option with an original Grant Date
    Exercise Price that was less than the original Grant Date fair
    market value, as determined for purposes of Section 409A of
    the Code, (each a “Discount Option”) one or more of
    the following choices with respect to the portion of such
    Discount Option that was unvested on December 31, 2004
    (such portion is referred to as the “Eligible Discount
    Option”):



 



    (a) If Optionee exercised any Eligible Discount Option (or
    portion thereof) in 2006, then Optionee may elect to amend the
    eligible portion of each Eligible Discount Option such that the
    Exercise Price of the Option will be increased to the fair
    market value, as determined for purposes of Section 409A of
    the Code, of a share of the Company’s Common Stock on the
    Option’s grant date.




    

    13








 






    (b) If Optionee was granted an Eligible Discount Option,
    but did not exercise any Eligible Discount Option in 2006, then
    Optionee may be given one or more of the following choices:



 



    (i) Optionee may elect to amend each Eligible Discount
    Option to change the option expiration date identified in the
    original grant agreement to a date that is expected to
    constitute a fixed calendar year election for purposes of
    Section 409A of the Code (the Administrator will have the
    discretion to choose to allow Optionees to pick different
    calendar years for different portions of each Eligible Discount
    Option); and/or



 



    (ii) Optionee may elect to amend the eligible portion of
    each Eligible Discount Option such that the Exercise Price of
    the Option will be increased to the fair market value, as
    determined for purposes of Section 409A of the Code, of a
    share of the Company’s Common Stock on the Option’s
    grant date.




    

    14